Citation Nr: 0032793
Decision Date: 12/15/00 Archive Date: 12/28/00
DOCKET NO. 99-19 390 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Muskogee,
Oklahoma
THE ISSUE
Entitlement to an increased rating for left otitis media with
slight deafness, currently evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Wm. Kenan Torrans, Associate Counsel
INTRODUCTION
The veteran served on active duty from November 1948 to
August 1949.
This matter arises from a July 1999 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Muskogee, Oklahoma, which denied the benefit sought. The
veteran filed a timely appeal, and the case has been referred
to the Board of Veterans' Appeals (Board) for resolution.
As a preliminary matter, in his substantive appeal, the
veteran requested that he be afforded a personal hearing.
However, in a statement received in February 2000, the
veteran indicated that he no longer desired a personal
hearing. Accordingly, the Board will proceed with its review
of the veteran's appeal.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
resolution of the issue on appeal has been identified and
obtained by the RO.
2. The veteran's service-connected otitis media in the left
ear is not objectively shown to involve suppuration or aural
polyps.
3. The veteran has Level II hearing in his left ear.
4. Service connection is in effect for hearing impairment in
the veteran's left ear only.
5. Total deafness in both the nonservice-connected right ear
and the service-connected left ear is not demonstrated.
CONCLUSION OF LAW
The criteria for assignment of an evaluation in excess of 10
percent for the veteran's otitis media in the left ear with
slight deafness have not been met. 38 U.S.C.A. §§ 1155, 5107
(West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.85, 4.87a,
Diagnostic Codes 6100, 6200 (1998), effective prior to June
10, 1999; 38 C.F.R. §§ 4.85, 4.87, Diagnostic Codes 6100,
6200 (2000), effective June 10, 1999; Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096
(2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran presently contends that his service-connected
otitis media of the left ear with slight deafness is more
severe than reflected by the currently assigned 10 percent
evaluation. In such cases, the VA has a duty to assist the
veteran in developing facts which are pertinent to those
claims. See generally Veterans Claims Assistance Act of
2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000).
In the present case, the Board finds that all relevant facts
have been properly developed, and that all relevant evidence
necessary for an equitable resolution of the issue on appeal
has been identified and obtained by the RO. That evidence
includes the veteran's service medical records, records of
treatment following service, reports of VA rating
examinations, and personal statements made by the veteran in
support of his claim. The Board has not been made aware of
any additional relevant evidence which is available in
connection with this appeal. Therefore, no further
assistance to the veteran regarding the development of
evidence is required. See Veterans Claims Assistance Act of
2000; McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997).
Disability evaluations are determined by evaluating the
extent to which the veteran's service-connected disability
affects his ability to function under the ordinary conditions
of daily life, including employment, by comparing his
symptomatology with the criteria set forth in the Schedule
for Rating Disabilities (Rating Schedule). See 38 U.S.C.A.
§ 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2000). In
addition, where entitlement to service connection has already
been established, and an increase in a disability evaluation
is at issue, it is the present level of disability that is of
primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58
(1994). Moreover, where there is a question as to which of
two evaluations shall be applied, the higher evaluation will
be assigned if the disability picture more nearly
approximates the criteria required for that rating.
Otherwise, the lower rating will be assigned. See 38 C.F.R.
§ 4.7 (2000).
Historically, service connection for chronic suppurative
otitis media of the left ear was granted by a November 1949
rating decision, and a 10 percent evaluation was assigned,
effective from August 6, 1949. At that time, the veteran's
hearing was found to be normal. By a February 1955 rating
decision, the veteran's 10 percent evaluation was waived from
May 1, 1954 to December 2, 1954. The 10 percent evaluation
was continued from December 3, 1954. By a November 1955
rating decision, the veteran's service-connected disability
was modified to reflect that he had incurred a slight hearing
loss in his left ear. The 10 percent evaluation was
continued.
In April 1999, the veteran submitted a claim for an increased
rating for his service-connected left ear disability,
contending in substance, that the severity of that disability
had increased. His claim was denied by a July 1999 rating
decision. This appeal followed.
In support of his claim for an increased rating, the veteran
submitted private clinical treatment records dating from
March through June 1995. Those records show that he had
undergone a left tympanoplasty to correct a perforation in
his left eardrum in April 1995. The veteran was noted to
experience hearing loss, but the treatment records show that
he tolerated the procedure well. There was no mention of any
otitis media, suppurative process, or aural polyps.
The veteran underwent a VA rating examination in July 1999.
The report of that examination shows that the veteran
indicated that he had reduced hearing primarily in his left
ear. The veteran indicated that he had been advised that he
had a perforated eardrum in service, and that following a
repair of the eardrum, he was discharged from service. An
audiological examination was conducted, which disclosed what
was characterized as a very mild high-frequency sensorineural
hearing loss in the right ear, and mild mixed hearing loss
through 3000 Hertz (Hz) dropping to a moderate high-frequency
sensorineural hearing loss at 4000 Hz in the left ear. The
audiological examination results, which found the veteran's
pure tone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
20
25
5
40
35
LEFT
35
30
15
35
50
The average pure tone decibel loss in the left ear was 32.
(The average is computed from the results at 1000, 2000,
3000, and 4000 Hz; the results at 500 Hz are only used to
determine whether hearing loss disability, under VA
standards, is present.) See 38 C.F.R. § 4.85 (2000). Speech
audiometry revealed speech recognition ability of 88 percent
in the left ear. A tympanogram of the left ear suggested
abnormal middle ear function. The examiner offered that the
veteran was what he characterized to be a "very marginal
hearing aid candidate" with respect to the left ear.
During the course of his examination, it was noted that the
veteran had a history of otitis media, and that he had
undergone a left tympanoplasty two years previously. The
veteran reported that he had experienced ringing in his ears,
but that such symptoms had ended upon completion of the
tympanoplasty. On physical examination, the pinna were
normal, and both eardrums were intact. The left eardrum was
characterized as sclerotic and thick. No fluid was seen.
The examiner concluded with relevant diagnoses of high-
frequency sensorineural hearing loss bilaterally, and post-
operative left tympanoplasty with good results.
The veteran's left otitis media with slight deafness is rated
pursuant to the criteria set forth in Diagnostic Code 6200.
The criteria for evaluation of diseases of the ear were
amended during the pendency of the veteran's appeal,
effective June 10, 1999. See 64 Fed. Reg. 25,210 (May 11,
1999). The new regulations are codified at 38 C.F.R. §§
4.85-4.87 (2000). Under the old criteria in effect prior to
June 10, 1999, for Diagnostic Code 6200, a 10 percent
disability evaluation, the maximum allowed, was awarded for
chronic suppurative otitis media, during the continuance of
the suppurative process. 38 C.F.R. § 4.87a, Diagnostic Code
6200 (1998). Any rating was to be combined with ratings for
loss of hearing. Id.
Under the new criteria, effective June 10, 1999, a 10 percent
disability evaluation, the maximum allowed, is awarded for
chronic suppurative otitis media, mastoiditis, or
cholesteatoma (or any combination), during suppuration, or
with aural polyps. 38 C.F.R. § 4.87, Diagnostic Code 6200
(2000). Evaluations of hearing impairment, and complications
such as labyrinthitis, tinnitus, facial nerve paralysis, or
bone loss of the skull, are to be evaluated separately.
The Board has compared both the old version of 38 C.F.R. §
4.87a, Diagnostic Code 6200 (1998), and the new version of
the regulation under 64 Fed. Reg. 25,202-25,210 (1999),
codified at 38 C.F.R. § 4.87, Diagnostic Code 6200 (2000).
Although the regulations were rephrased, the elements to be
considered in determining the degree of disability have not
been changed to such an extent as to affect the outcome of
the current claim.
In the present case, the veteran has not been shown to have
any suppurative process in his left ear, and is not shown to
have aural polyps. None of the clinical treatment records
disclosed the presence of otitis media, and the report of the
July 1999 rating examination did not show that the veteran
continued to suffer from that disorder. However, the veteran
was noted to suffer from impaired hearing in his left ear
which will be considered separately.
Based on the foregoing, the Board thus, finds that a
preponderance of the evidence reflects that the veteran's
otitis media is not suppurative and a higher rating is not
available under both the old and new criteria for Diagnostic
Code 6200, given, as noted above, that there is no current
evidence of suppurative otitis media. See 38 C.F.R. §§ 4.87a
and 4.87, Diagnostic Code 6200, effective prior to and after
June 10, 1999.
The standards for rating an impairment of auditory acuity are
set forth at 38 C.F.R. §§ 4.85 et seq. (2000). The Board
observes that, in evaluating service-connected hearing
impairment, disability ratings are derived by a mechanical
application of the rating schedule to the numeric
designations assigned after audiometric evaluations are
rendered. See Lendenmann v. Principi, 3 Vet. App. 345
(1992).
Effective June 10, 1999, certain regulatory changes were also
made to the criteria for evaluating audiological
disabilities. See 64 Fed. Reg. 25202-25210 (1999) codified
at 38 C.F.R. §§ 4.85-4.87 (1999). See Karnas v. Derwinski, 1
Vet. App. 308, 313 (1991).
The Board observes that summary information accompanying the
regulatory changes to the rating criteria for evaluating
audiological disabilities specifically indicates that, except
for certain "unusual patterns of hearing impairment", the
regulatory changes do not constitute liberalizing provisions.
38 C.F.R. § 4.86 (2000). The "unusual patterns of hearing
impairment" include cases where the pure tone thresholds at
each of the four specified frequencies (1,000, 2,000, 3,000
and 4,000 Hertz) is 55 decibels or more, or where the pure
tone thresholds are 30 decibels or less at 1,000 Hertz and 70
decibels or more at 2,000 Hertz. The veteran's bilateral
hearing loss pattern does not fit the requirements of an
unusual pattern of hearing impairment, with pure tone
thresholds at each of the four specified frequencies at 55
decibels or more or where the pure tone thresholds are 30
decibels or less at 1,000 Hertz and 70 decibels or more at
2,000 Hertz. Neither hearing loss pattern is evident in the
current case.
Evaluations of bilateral defective hearing range from
noncompensable to 100 percent based on organic impairment of
hearing acuity as measured by the results of controlled
speech discrimination tests together with the average hearing
threshold level as measured by pure tone audiometry testing
in the frequencies 1,000, 2,000, 3,000 and 4,000 Hertz per
second. The rating schedule establishes eleven different
auditory acuity levels designated from Level I for
essentially normal auditory acuity to Level XI for profound
deafness. 38 C.F.R. §§ 4.85, 4.87, Diagnostic Codes 6100-
6110 (effective prior to June 10, 1999) and 38 C.F.R. §§
4.85, 4.87, Diagnostic Code 6100 (effective June 10, 1999).
In situations where service connection has been granted for
defective hearing involving one ear, and the veteran does not
have total deafness in both ears, a maximum 10 percent
evaluation is assignable where hearing in the service-
connected ear is at level X or XI. See 38 C.F.R. §§ 3.383,
3.385, 4.85, 4.87, 4.87, Table VII, Diagnostic Codes 6100,
6101 (prior to June 10, 1999) and 38 C.F.R. §§ 4.85-4.87,
Diagnostic Code 6100 (effective June 10, 1999); see also
VAOPGPREC 32-97 (O.G.C. Prec. 32-97).
Applying the pertinent rating criteria to the veteran's July
1999 rating examination results yields a numerical category
designation of II for the left ear (between 42 and 49 average
pure tone decibel hearing loss, with between 84 and 90
percent of speech discrimination.) Entering the category
designations for the veteran's left ear into Table VII
produces a disability percentage evaluation of zero-percent,
under Diagnostic Code 6100. Based upon this evidence, a
rating in excess of the current rating is not warranted under
the rating criteria in effect prior to and after June 10,
1999. See Table VII, 38 C.F.R. § 4.85, prior to June 10,
1999 and 38 C.F.R. §§ 4.85-4.87, effective June 10, 1999.
The veteran's arguments that his service-connected left ear
disability, including otitis media and hearing loss, are more
severely disabling than the currently assigned 10 percent
have been considered. The Board has also considered the
arguments advanced by the veteran's service representative
that the case should be remanded for an additional VA rating
examination because the examiners who conducted the July 1999
examination had not reviewed the veteran's claims file.
However, the Board observes that under the applicable rating
criteria for evaluating both otitis media and for hearing
loss, the veteran would not be entitled to receive a
compensable evaluation for his service-connected left ear
disability. Even so, given that the veteran's 10 percent
rating has been in effect for more than 50 years, it is
considered to be a protected rating and cannot be reduced.
See 38 C.F.R. § 3.951 (2000).
Further, the Board finds that the results of the VA rating
examination of July 1999, while not based upon a review of
the evidence contained within the veteran's claims file, were
entirely consistent with the veteran's clinical history. The
examiner noted the veteran's history of having undergone a
left tympanoplasty and the history of otitis media in
service. The clinical findings contained in the examination
report were consistent with the private medical treatment
records the veteran submitted in support of his claim.
Therefore, the Board finds that the July 1999 rating
examination was not inadequate in that it offered a clear and
accurate representation of the veteran's overall disability
picture. Accordingly, the Board finds that it is not
necessary to remand the case back to the RO for an additional
rating examination.
The Board must conclude, therefore, that the preponderance of
the evidence is against the veteran's claim for entitlement
to an evaluation in excess of 10 percent for his otitis media
of the left ear with slight deafness. As noted, he is not
shown to have any suppuration or aural polyps in his left
ear. Accordingly, the veteran would not be entitled to
assignment of a compensable rating under Diagnostic Code
6200. Likewise, the severity of his left ear hearing loss
has not been found to warrant assignment of a compensable
evaluation under Diagnostic Code 6100. Therefore, the Board
finds that the veteran's appeal must be denied.
The potential application of Title 38 of the Code of Federal
Regulations (2000) have also been considered, in addition to
the provisions of 38 C.F.R. § 3.321(b)(1) (2000). See
Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The
Board has carefully considered the veteran's contentions in
this case. However, there has been no showing that the
disability under consideration has caused marked interference
with employment, has necessitated frequent periods of
hospitalization, or otherwise renders impracticable the
regular schedular standards. The Board recognizes that the
veteran currently experiences hearing impairment, and that he
underwent a left tympanoplasty in 1995. However, he has not
undergone any inpatient treatment since that time, and he is
not shown to be unable to obtain or retain gainful employment
as a result of his left ear disability. The Board finds no
evidence of an exceptional or unusual disability picture in
this case which renders impracticable the application of the
regular schedular standards. In that regard, the Board
observes that the applicable rating criteria contemplate
higher disability ratings for the veteran's otitis media of
the left ear with slight deafness on a schedular basis.
However, his objectively manifested symptomatology has not
been found to be of such severity as to warrant an evaluation
in excess of that presently assigned on a schedular basis.
Likewise, referral for consideration of an extraschedular
evaluation is not warranted here. See 38 C.F.R.
§ 3.321(b)(1); Bagwell v. Brown, 8 Vet. App. 337, 339 (1996);
Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).
As the preponderance of the evidence is against the veteran's
claim for an initial rating in excess of 10 percent for his
otitis media of the left ear with slight deafness, the
benefit of the doubt doctrine is not applicable. See
Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,
§ 4, 114 Stat. 2096, ___ (2000) (to be codified as amended at
38 U.S.C. § 5107; ; Gilbert v. Derwinski, 1 Vet. App. 49
(1990). Should the veteran's disability picture change, he
may apply at any time for an increase in his assigned
disability rating. See 38 C.F.R. § 4.1. At present,
however, the Board finds no basis upon which to grant a
rating in excess of 10 percent for the veteran's service-
connected otitis media of the left ear with slight deafness.
ORDER
Entitlement to an evaluation in excess of 10 percent for the
veteran's otitis media of the left ear with slight deafness
is denied.
S. L. KENNEDY
Veterans Law Judge
Board of Veterans' Appeals